[HISTORY: Adopted by the Board of Trustees of the Village of Old Brookville 8-30-1976 by L.L. No. 2-1976. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Freshwater Wetlands Control Law of the Incorporated Village of Old Brookville."
The Incorporated Village of Old Brookville hereby finds and declares that the public interest and general welfare of the residents of the Village will be served through the creation of procedures for the preservation, proper maintenance, and utilization of natural resources within the Village and for the protection of said natural resources from encroachment upon, spoiling, pollution, or elimination resulting from population growth attended by commercial development, housing, roads, and other construction.
The preservation and maintenance of freshwater wetlands and watercourses in an undisturbed and natural condition constitutes important physical, ecological, social, aesthetic, recreational, and economic assets necessary to promote the health, safety and general welfare of present and future residents of the Village and of downstream drainage areas.
The losses of freshwater wetlands and watercourses deprive the people of the Incorporated Village of Old Brookville of the many and multiple benefits derived from them, to wit:
Control of floods and storms by the hydrological absorption and storage capacity of freshwater wetlands;
Wildlife habitats by providing breeding, nesting, and feeding grounds and predator escape cover for many forms of wildlife, wildfowl, and shorebirds, including migratory wildfowl and rare species;
Protecting subsurface water resources, providing valuable watersheds, and recharging groundwater supplies.
Pollution treatment by serving as biological and chemical oxidation basins;
Erosion control by serving as sedimentation areas and filtering basins, absorbing silt and organic matter, and protecting channels and harbors;
Education and scientific research by providing readily accessible outdoor biophysical laboratories, living classrooms and education resources;
Open space and aesthetic appreciation; and
Sources of nutrients in freshwater food cycles.
It is therefore the intent of this chapter to promote the public purposes identified in this section by providing for the protection, proper maintenance and use of the freshwater wetlands and watercourses located within the Village by preventing or minimizing erosion due to flooding and stormwater runoff; maintaining the natural ground water supplies; protecting subsurface water resources and providing valuable watersheds; preserving and protecting purity, utility, water retention capability, ecological functions, recreational usefulness and natural beauty of all freshwater wetlands, watercourses, and other related natural features of the terrain; and establishing and protecting wildlife habitats by providing breeding, nesting, feeding grounds, and predator escape cover for many forms of wildlife.
This chapter shall affect all land within the Incorporated Village of Old Brookville and activities conducted thereon which are set forth and defined hereafter and shall be binding upon all departments, boards and official acts of the Incorporated Village of Old Brookville.
The following terms, phrases, words and their derivatives shall have the meaning giving herein:
- Includes the owner of the affected property, his or her agent or contract vendee who files an application for a permit pursuant to this chapter.
- The outer limit of vegetation specified in Subsections A and B of the definition of "freshwater wetlands" and the waters specified in Subsection C of the definition of "freshwater wetlands" and as specified in the definition of "watercourses" in this section.
- To fill, place, eject, discharge, or dump any material but not including stormwater.
- FRESHWATER WETLANDS
- Lands and waters lying within the boundaries of the Village as shown on the freshwater wetlands map prepared by or for the State of New York and filed with Village pursuant to § 24-0301 of the New York State Environmental Conservation Law or as shown on any freshwater wetlands maps the Village shall prepare, including the Freshwater Wetlands Map, which contain any or all of the following:
- A. Lands and submerged lands commonly called marshes, swamps, sloughs, bogs and flats supporting aquatic or semi-aquatic vegetation of the following vegetation type.
- (1) Wetland trees, which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other trees; including, among others, red maple (Acer rubrum), willows (Salix spp.), black spruce (Picea mariana), swamp white oak (Querus bicolor), red ash (Fraxinus pensylvanica), black ash (Fraxinus nigra), silver maple (Acer saccharinum), American elm (Ulmus americana) and larch (Larix laricina);
- (2) Wetland shrubs, which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other shrubs; including, among others, alder (Alnus spp.), buttonbush (Cephalanthus occidentalis), bog rosemary (Andromeda glaucophylla), dogwoods (Cornus spp.), and leatherleaf (Chamaedaphne calyculata.);
- (3) Emergent vegetation; including, among others, cattails (Typha spp.), pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.), arrow arum (Petlandra virginica), arrowheads (Sagittaria spp.), reed (Phragmites communis) wildrice (Zizania aquatica), burreeds (Sparganium spp.), purple loosestrife (Lythrum salicaria), swamp loosestrife (Decodon verticullatus), and water plantain (Alisma Plantago-aquatica);
- (4) Rooted, floating-leaved vegetation; including, among others, waterlily (Nymphaea odorata), water shield (Brasenia schreberi), and spatterdock (Nuphar spp.);
- (5) Free-floating vegetation; including, among others, duckweed (Lemna spp.), big duckweed (Spirodela polyrhiza), and watermeal (Wolffia spp.);
- (6) Wet meadow vegetation, which depends upon seasonal or permanent flooding or sufficiently waterlogged soils to give it a competitive advantage over other open land vegetation; including, among others, sedges (Carex spp.), rushes (Juncas spp.), cattails (Typha spp), rice cut-grass (Leersia oryzoides), reed canary grass (Phalaris arundinacea), swamp loosestrife (Decodon verticillatus), and spikerush (Eleocharis spp.);
- (7) Bog mat vegetation; including among others, sphagnum mosses (Sphagnum spp.), bog rosemary (Andromeda glaucophylla), leatherleaf (Chamaedaphne calyculata), pitcher plant (Sarracenia purpurea), and cranberries (Vaccinium macrocarpon and V. Oxycoccos);
- (8) Submergent vegetation; including, among others, pondweeds (Potamogeton spp.), naiads (Najas spp.), bladderworts (Utricularia spp.), wild celery (Vallisneria americanan), coontail (Ceratophyllum demersum), water milfoils (Myriophyllum spp.), muskgrass (Chara spp.), stonewart (Nitella spp.), waterweeds (Elodea spp.), and water smart weed (Polygonum amphibium);
- B. Lands and submerged lands containing remnants of any vegetation that is not aquatic or semi-aquatic that has died because of wet conditions over a sufficiently long period, provided that such wet conditions do not exceed a maximum seasonal water depth of six feet, and provided further that such conditions can be expected to persist indefinitely, barring human intervention;
- FRESHWATER WETLANDS MAP
- The map prepared for purposes of administering this chapter. This map shall serve as a guide to the location and general boundaries of freshwater wetlands and watercourses in the Incorporated Village of Old Brookville but shall not, in itself, define the location and boundaries of freshwater wetlands and watercourses, which are defined in the definition of "freshwater wetlands" above.
- Soil, sand, gravel, clay, bog, peat, mud, debris, and refuse or any other organic or inorganic substance, whether liquid, solid, or gaseous or any combination thereof.
- Freshwater wetlands permit for the conduct of a regulated activity,
- Any corporation, firm, partnership, association, trust, estate, one or more individuals, and any unit of government, agency or subdivision thereof.
- PLANNING BOARD
- The Planning Board of the Incorporated Village of Old Brookville designated by the Village to be responsible for administering the provisions of this chapter and promulgating rules, regulations and procedures necessary to implement and administer properly the provisions herein.
- The presence in the environment of human-induced conditions or contaminants in quantities or characteristics which are or may be injurious to humans, vegetation, wildlife or property.
- Any action resulting in direct or indirect physical impact on a freshwater wetland, including but not limited to any regulated activity.
- Any water body, natural or artificial, such as but not limited to a pond, reservoir, lake, stream, or brook.
Except as provided in § 160-6 of this chapter, the following activities shall be prohibited and unlawful:
To deposit directly or indirectly or permit to be deposited any material into, upon, or within 50 feet of the edge of any freshwater wetland, or watercourse.
To construct or permit to be constructed any building or structure of any kind upon or within 50 feet of the edge of any freshwater wetland or watercourse.
To remove or permit to be removed any material (other than debris, refuse, or water) from any freshwater wetland or watercourse.
Activities allowed without permits. The following activities are permitted in, upon, or within 50 feet of the edge of any such wetland or watercourse, except where the Village does determine that the activity violates, or threatens to violate the purposes of this chapter.
Outdoor recreation, including play and sporting areas; field trails for nature study, hiking or horseback riding; and swimming, skin diving, boating, trapping, hunting or fishing where otherwise legally permitted.
Maintenance of lawns, grazing, farming, gardening, and harvesting of crops where otherwise legally permitted, except for use of chemicals as provided for in Subsection B(6).
Operation and maintenance of such dams, retaining walls, terraces, sluices, culverts or other water control structures or devices as were in existence on the effective date of these regulations.
Incidental removal of brush and trees which would result in no appreciable effect upon the runoff or drainage into any river, freshwater wetland or watercourse.
Activities requiring Planning Board approval. The following activities are permitted in, upon or within 50 feet of the edge of any such freshwater wetland or watercourse only after approval by and subject to the terms and conditions specified by the Planning Board as a part of a subdivision application, a site development plan application, or an application submitted pursuant to the procedure set forth in this chapter. Such Planning Board approval, terms and conditions are to be given and imposed so as to enhance or cause the least possible damage, encroachment or interference with the natural resources or functions of the freshwater wetland or watercourse consistent with the purposes of this chapter.
Removing water-deposited silt, sand, or other material in order to restore the preexisting elevations.
Restoring elevations that have been altered by erosion or storm drainage.
The construction, expansion or improvement of private recreation facilities, as otherwise legally permitted, provided the amount of material deposited, removed or regraded does not exceed 15 cubic yards.
The construction of roads or driveways, where alternative means of access are proven to be impractical, provided they do not impede flood flows.
The construction of municipal or utility uses such as water supply facilities, park and recreation facilities, sewage treatment facilities or other installations which involve any alteration of existing natural conditions.
The use of chemicals, dyes, fertilizers, herbicides or other similar materials, provided that approval shall be given only after consultation with or pursuant to the guidelines of the Planning Board.
Any person proposing, permitting or causing to be conducted a regulated activity in, upon or within 50 feet of the edge of any freshwater wetland shall file an application for site plan review approval and a permit with the Village Clerk. If the wetland in question is located partially outside the Incorporated Village of Old Brookville, one copy of the application shall be filed by the Village Clerk with the Clerk of Nassau County. To the extent that the following requirements or procedures conflict or are not consistent with the rules and regulations promulgated by the Planning Board for site plan review approval, the more stringent requirements shall apply. Applications shall contain the following information:
Name and address of owner and name and address of applicant, and whether applicant is owner, lessee, licensee, etc. If applicant is not owner of record, the written consent of the owner must be attached. The application should state purpose of application and relief sought and should include a detailed description of the proposed activity, and a map showing the area directly affected, with the location of the proposed activity thereon, and a current list of record owners of lands and claimants of water rights within 100 feet of the property on which the regulated activity is located.
It may be required that the applicant furnish any topographical and perimeter surveys, hydrological computations, engineering studies and other factual or scientific data and reports as deemed necessary by the Planning Board to permit it to arrive at a proper determination.
Applications affecting water retention capability, water flow or other drainage characteristics of any freshwater wetland or watercourse shall include a statement of the area of upstream and downstream watersheds, impact analysis and information as to rainfall intensity in the vicinity for not less than ten-year return frequency, together with approximate runoff coefficients to determine the capacity and size of any channel sections, pipes or waterway openings, together with plans for necessary bridges, culverts, stormwater or pipe drains that, in the opinion of the Planning Board, are needed to arrive at a proper determination on the application, consistent with the purposes of this chapter.
After submission of the completed application, the applicant shall publish, at his or her expense, a notice of application indicating that the applicant intends to file an application in two newspapers having a general circulation in the area. The Planning Board may waive the publishing of the notice of application and require the publication of the appropriate notice of hearing.
If no notice of objection has been filed by any party-in-interest in response to the notice of application, or if the Planning Board finds that the proposed activity is of such a minor nature as not to affect or endanger the balance of systems within the freshwater wetland, it may dispense with public hearing. If the Planning Board determines that a hearing is not to be held, the Boards shall publish, in two newspapers, its decisions setting forth its findings and reasons therefor.
If a hearing is to be held, it shall be scheduled no sooner than 30 days and not later than 60 days after the receipt of the completed application by the Village and the publishing of the notice of application. The applicant shall publish the notice of hearing at his or her expense in two newspapers having a general circulation in the area where the affected freshwater wetland is located not more than 28 days nor less than 15 days prior to the date set for the hearing.
Applicant shall also send by certified mail not less than 15 days prior to the date set for the hearing, the notice of hearing to owners-of-record of adjacent lands within 100 feet of the premises containing the freshwater wetland and known claimants to water rights which will be affected.
Conditions and time limit. In approving any application submitted pursuant to the requirements of this chapter, the Planning Board may impose such conditions on the proposed activity as are necessary to assure compliance with this chapter. The Planning Board may fix a reasonable time within which any operations must be completed and may also require the filing within the Village Board of Trustees of cash or surety company performance bond in such amount and form as determined necessary by the approving authority to ensure compliance with the approved permit.
Where the Planning Board finds that, because of the special circumstances of a particular case, extraordinary hardship may result from strict compliance with the provisions of this chapter, it may adjust, upon request of the applicant, the provisions of §§ 160-5 and 160-6 so that substantial justice may be done and the public interest secured; provided, however, that any such adjustment will implement the spirit and intent of this chapter. In permitting any such adjustment, the Planning Board shall attach such conditions as are, in its judgement, necessary to secure substantially the objectives of the standards or requirements so adjusted.
Notwithstanding this section, only the Zoning Board of Appeals is empowered to grant variances to the regulations of Chapter 300, Zoning, of the Code of the Village of Old Brookville. In all cases where a freshwater wetland or watercourse is the basis for considering the granting of a variance, the Zoning Board of Appeals shall refer the matter to the Planning Board and other agencies they deem appropriate for review and report.
General boundaries of freshwater wetlands and watercourses are shown on the Incorporated Village of Old Brookville Freshwater Wetlands Map. Finite boundaries will be interpreted by the Planning Board when necessary, according to the definitions established in § 160-4 of "freshwater wetlands," "watercourses" and "freshwater wetlands map." Finite boundaries shall be established after consultation with a qualified expert, who shall be appointed by the Planning Board.
Notwithstanding the above, freshwater wetlands as shown on the Official Map of wetlands prepared by the New York State Department of Environmental Conservation under the authority of the Freshwater Wetlands Act shall be considered to be freshwater wetlands by the Incorporated Village of Old Brookville.
Upon application for a permit to conduct any activity requiring Planning Board action, the applicant shall pay a fee relating to site plan review under Chapter 154, Fees and Deposits, of the Code of the Village of Old Brookville, to the Incorporated Village of Old Brookville.
Any person who violates, disobeys or disregards any provision of this chapter shall be liable for a civil penalty, not to exceed $3,000 for every such violation to be assessed. Each and every day a violation continues after written notice has been served on the violator by the Building Inspector shall be deemed a separate violation. Before assessment of the civil penalty, the alleged violator shall be afforded a hearing or opportunity to be heard before the Planning Board upon due notice, and with the rights to specification of the charges and representation by counsel.
The Planning Board shall also have the power, following a hearing, to direct a violator to cease violation of this law and to satisfactorily restore the affected freshwater wetland or watercourse to its condition prior to the violation under the Board's supervision.
Any civil penalty or order issued by the Village shall be reviewable pursuant to the Civil Practice Law and Rules.
In addition to the above civil penalty, any person who violates an order issued pursuant to Subsection B of this section shall be guilty of a violation pursuant to the Penal Law, punishable by a fine of not less than $500, nor more than $1,000. For a second and each subsequent offense, the violator shall be guilty of a violation punishable by a fine of not less than $1,000 nor more than $2,000.
The Planning Board shall have the right to seek equitable relief to restrain any violation or threatened violation of any provisions of this chapter.
In their interpretation and application, the provisions of this chapter shall be held to be the requirements adopted for the promotion of the public health, safety, general welfare, and for the preservation, proper maintenance, and utilization of natural resources. Whenever the requirements of this chapter are at variance with the requirements of any other lawfully adopted rules, regulations, laws or ordinances, the most restrictive of that imposing the highest standards shall govern, except where the provisions of the New York State Freshwater Wetlands Act provide to the contrary.
This chapter or any part thereof, including the Freshwater Wetlands Map, may be amended, supplemented or repealed from time to time by the Village Board of Trustees on its own motion or on petition as provided in the Village Law. Every such proposed amendment shall be referred by the Village Board of Trustees to the Planning Board for written report before any public hearing which may be held by the Village Board of Trustees pursuant to Village Law. The Village Board of Trustees shall not take action on any such amendment without such reports from the Planning Board unless such Board shall fail to report within 30 days after its regularly scheduled meeting next following the receipt of such referral, but in no case later than within 45 days after the receipt of such referral by the Village Board of Trustees.